A forum for critical analysis of international issues and developments of particular relevance to the sustainable political and socio-economic development of Overseas Countries and Territories (OCTs).

12 October 2009

UN/US Assistance Requested for Constitutional Education Programme in the US Virgin Islands

Statement by Gerard Luz Amwur James II
President
Fifth Constitutional Convention of the U.S. Virgin Islands
to the
United Nations General Assembly
Fourth Committee

United Nations Headquarters
New York, N.Y.
October 6, 2009

Thank you, Mr. Chairman,

My name is Gerard Luz Anwur James II, and I am the President of the Fifth Constitutional Convention of the US Virgin Islands, elected by the people of the territory from all four islands. I have the honor to address this Committee on the adoption last May by our Convention of a draft constitution for consideration by the administering power.

This was the fifth attempt by the US Virgin Islands to draft a locally written constitution to replace the Revised Organic Act of 1954, written for the territory by the administering power, and which continues to be amended incrementally. The present draft constitution was submitted on May 31st of this year to the elected governor, who was to have forwarded said document to the administering power for review, with the authority to modify it or amend it, “in whole or in part.” The document would then be returned to the
territory for a referendum, similar to the process in 1980 where the final document was not approved by the voters at that time.

It is important to advise this august body that the present process has been short-circuited when the governor of the territory took the unilateral decision not to transmit the draft constitution to the administering power, according to the law, based on the contention that some of the provisions might not be consistent with how the US Constitution is
applied to the territory. The Fifth Constitutional Convention has filed suit in the Superior Court of the territory to mandate that the governor transfer the document, as specified by law. We must await the decision of the court before the resumption of the constitutional
process.

It should be emphasized that the local constitutional process is not designed to alter the present non self-governing territorial status, but merely to “organize its internal governance arrangements” as accurately stated in General Assembly Resolution 63/108 of 5 December 2008. Thus, if our constitution is subsequently adopted in referendum, this does not serve as the basis for removing the territory from the UN list of non selfgoverning territories, since the status of the territory would not have changed.

The provisions in the draft constitution, including those which the governor has found objectionable, are best reviewed for US constitutional consistency by the administering power based on its determination of what is allowable under the present dependency status. The elected members of the Convention have placed in the document a structure of governance to which it is the responsibility of the administering power to review, and to respond. We look forward to this engagement.

In this connection, I wish to emphasize that the entering into force of a new constitution based on the present status, in the language of our draft constitution, “shall not preclude or prejudice the further exercise by the people of the (US) Virgin Islands of the right to self-determination regarding the attainment of a permanent political status.”

In this regard, several attempts were made between the 1980 and 1993 to decide on a permanent political status through successive governmental commissions and committees. Our only referendum on political status was held in 1993, but as indicated in relevant General Assembly resolutions, an insufficient percentage of voters participated for the result to be valid. The present non self-governing status, therefore, remained – and remains - unchanged.

Mr. Chairman,

It is important to reveal that the work of the present Constitutional Convention has been impeded by a lack of resources. This has caused several inordinate delays in the drafting process, as well as in the initiation of the critical public education phase of our work. A similar resource deficit existed for the 1993 political status referendum process, as explained to the Decolonization Seminar in St. Kitts last May by the international
political advisor to our Convention.

As this committee is aware, a 2008 request by our Constitutional Convention for assistance from the administering power was denied. In this connection, we welcomed the adoption of Resolution 63/108 last December which requested the administering power and relevant UN organizations to assist the territory’s public education program, consistent with Article 73(b) of the United Nations Charter which mandates such assistance. We trust that the commitment made in the resolution, which is also included
in the present draft resolution under your consideration, would be expeditiously implemented since the educational component is critical to the process. If the administering power is not forthcoming with the requested assistance in support of our constitutional evolution, we ask them to facilitate our access to United Nations electoral
assistance similar to that provided to other territories such as Tokelau, Sint Maarten the former Trust Territory of the Pacific Islands and others.

In any case, assistance from any quarter is vital given the degree of mis-interpretation in public discussion based on incomplete and sometimes misleading reports. The lack of
resources for our Convention prohibits us from mounting the required public education program to counter the mis-information. In this regard, the relevant provisions of the
draft constitution include:

• A bill of rights
• A structure of the various branches of internal government.
• The mandate for establishment of decentralization of government.
• Free and compulsory education, which “preserves the African history, culture and traditions of the people,” and which creates eligibility criteria for free tertiary education.

• The control of the natural resources by the people of the territory,including the marine resources and submerged lands, as well as the protection of the environment, pursuant to longstanding United Nations resolutions.

• The preservation of culture.

• A mechanism to make recommendations on the future political status of the territory based on the legitimate political status options of integration, free association and independence, consistent with General Assembly Resolution 1541.

Mr. Chairman,

A major area of public discussion on the draft constitution relates to the definition of a Virgin Islander. According to the 1917 treaty, through which the territory was purchased
by the United States from Denmark, the political rights and citizenship of the inhabitants of the territory at the time of transfer would be determined by the US Congress. The
citizenship of these persons at the time of the transfer who were mainly, but not exclusively, comprised of former enslaved Africans and their descendents, was not
determined until ten years later.

Thus, the provisions of the draft constitution defining Ancestral Native Virgin Islander was based on the laws of the administering power emerging from that period (See Section 306 INA (8 U.S.C. 1406). It is also consistent with the definition of native populations in the constitutions of other non self-governing territories in the Caribbean and the Pacific.

A second section of the draft constitution provides a broader definition of a Native Virgin Islander as having been born in the territory, or a descendent of a native born person. The importance of the reference to Native Virgin Islanders in the constitution is highlighted by the fact that the native-born population in the territory is on the decline, with the percentage in 2005 at about 51.3 % according to a 2007 University of the Virgin Islands
study. This decline has significant implications for the self-identity of the people.

The draft constitution also provides that only Ancestral or Native Virgin Islanders be eligible to serve as governor and lieutenant governor, and as members of a future political
status advisory commission. Additionally, a provision to exempt Ancestral Virgin Islanders from paying property tax has been inserted. This is due to the fact that significant externally motivated land speculation continues to result in the major loss of property by the native population. This provision of the draft constitution is consistent
with relevant General resolutions, most recently operative paragraph 9 of General Assembly Resolution 63/108, which calls for all necessary steps to be taken to protect the property rights of the peoples of the territories.

It is these and related provisions which appear to be objectionable to certain interests, but similar native rights' provisions are part of constitutions of other US-administered territories, such as American Samoa and the Northern Marianas, both of which have the
same unincorporated political status as the U.S. Virgin Islands. We would wish to know why such provisions would be applicable to some territories, but not to others.

To conclude, Mr. Chairman,

We are confident that, notwithstanding the present delay, the draft constitution will be ultimately forwarded to the administering power for assessment, as in the case of other
draft constitutions before it. In the end, we recognize that under our present political status the administering power alone will determine the final content of the document
based on its unilateral applicability of laws to our territory. Thus, the delay in the process is especially troubling, and prevents the people of the US Virgin Islands from gaining a better understanding of the parameters of the dependency status as defined in the 21st Century.

We are confident, however, that the political obstacles will be cleared from our path so that we can take this next step along the path towards a full measure of self-government.